Recall in this post that I suggested (or more than) that in Gomez, the Tennessee Supreme Court had completely misunderstood Booker and that I attributed the misappropriation to a misreading of the following passage from Justice Stevens' majority opinion:
If the Guidelines as currently written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences in response to differing sets of facts, their use would not implicate the Sixth Amendment. We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. See Apprendi, 530 U. S., at 481; Williams v. New York, 337 U. S. 241, 246 (1949). Indeed, everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges; it is that circumstance that makes the Court's answer to the second question presented possible. For when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.
The Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.
I also noted that it seemed to me, judging from the oral arguments in Towne and Black, a majority of the California Supreme Court seemed to take this passage to mean that Blakely does not apply to California's sentencing regime of lower, middle, and upper terms.
Prodded by one of the lawyers involved in the Gomez rehearing, I have done a less than comprehensive hunt for other courts that have taken the the quoted passage from Booker as a basis to say that Blakely does not apply to a state sentencing regime. It looks like at least two districts of the California Court of Appeals have taken the wrong fork in the road, albeit in unpublished decisions, as well as one district of the Ohio Court of Appeals in a published decision.
The California cases are People v. Lopez, (Cal. App Dist. 2, Div. 6 March 29,2005) (mem.) and People v. Wright, (Cal. App. 5th Dist. Jan. 18, 2005) (mem.) (no link available). Lopez takes flight from the Booker passage as follows:
The upper term is not rendered an extraordinary sentence merely because the court must impose the middle term unless there are factors in aggravation. Although there is language in Blakely which, if taken out of context, would preclude the court from relying on any factor not found true by the jury, Blakely did not eliminate judicial discretion or judicial fact finding for the purpose of selecting a sentence within the permissible range.
It goes on to quote the Booker passage and take the entire range of lower, middle, and upper terms as "the permissible range," in its language.
Footnote 12 from Wright says the following:
Our conclusion finds support in the recent amplification of Apprendi - Blakely found in United States v. Booker (Jan 12, 2005, No. 04-104) 543 U.S. ___ [2005 WL 50108]. We distill from Booker the following refinement for our present purposes: If a fact necessarily results in a higher sentence, the fact must be admitted by defendant or found by the jury. Because California's sentencing law vests in the trial court discretion to choose the upper or middle term even where aggravating factors are found which preponderate, the present sentence is constitutionally permitted.
There may be many more California cases of the same ilk. The California Court of Appeals' Blakely productions is prodigious--almost all of it, recently, unpublished, probably either in deference to or fear of the decisions to come in Towne and Black from the California Supreme Court.
The Ohio case is State v. Combs, 2005 Ohio 1923 (Oh. Ct. App 12th Dist. April 25, 2005). After quoting the Booker passage, the court adds this rather curious summarization: "The Supreme Court found that the Guidelines, when mandatory, violated Blakely because they permit a sentencing court, upon the postconviction finding of additional facts, to impose a sentence in excess of the statutory maximum authorized by the jury verdict. Booker, 125 S.Ct. at 751." The Guidelines "when mandatory . . . permit"?
Ohio sentencing appears to be a complicated affair, and perhaps I have gotten it wrong. But as I understand the opinion Combs does use the Booker passage to say that Blakely does not apply to Ohio sentencing.
So we have one state, Tennessee, derailed by Booker, and two others, California and Ohio, apparently set to run off the tracks. I'd say the Booker passage packs quite a punch, although, in my estimation, it's a low blow.
If anyone know of other states or other important decisions from these states that do the same thing, send word.